UT Documents

About Me

I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, November 19, 2009

The Weekly Standard's ACLU smear indicts only itself

Even for The Weekly Standard, this bitter, juvenile McCarthyite attack on the ACLU by Thomas Joscelyn sputters with so much fact-free, impotent, and self-defeating rage that it's hard to believe it was printed. Right in the headline, it oh-so-cleverly smears the ACLU as "Al Qaeda's Civil Liberties Union"; it ends by proclaiming the group to be "al Qaeda's useful idiots"; and it's filled in the middle with all sorts of trite innuendo circa 2002 that anyone who believes in the Constitution -- i.e., radical "far leftist" doctrines such as "trials" and "due process" -- secretly harbors love for the Terrorists and hatred for America ("The ACLU has worked diligently to undermine America's stance in what was formerly known as the 'war on terror,' and has even been willing to disseminate propaganda on behalf of our jihadist enemies"). What the article actually -- and ironically -- reveals is how much contempt The Weekly Standard and much of America's Right has for the nation's core political values and how, in the process, they do more to aid Islamic extremists than even those who directly fund and advocate for them.

The primary piece of incriminating evidence Joscelyn waves around in his little briefcase is this ACLU-produced video featuring five Muslim men who were held at Guantanamo without charges for years and then released. In the video, they recount the torture and abuse to which they were subjected, as well as the impact which prolonged, due-process-free imprisonment by the U.S. has had -- and continues to have -- on their shattered lives.

Joscelyn insists that -- even though they've never been charged with, let alone convicted of, anything -- these men are guilty, evil Terrorists. To make his case against them, he relies on Bush-era documents containing unproven, untested, and uncharged allegations. But what he dishonestly -- though understandably -- fails to note is that each of these individuals are available to appear in the ACLU video because they were released from Guantanamo by the Bush administration [Moazzam Begg (released 2005); Omar Deghayes (released 2007); Bisher al-Rawi (released 2007); Ruhal Ahmed (released 2004); Shafiq Rasul (released 2004)]. If, as Joscelyn claims, the ACLU are Al Qaeda's "useful idiots" for producing a video containing interviews with these individuals, what are Bush officials who released them onto the streets? He also fails to note that time and again, government allegations against Guantanamo detainees -- the source on which he principally relies -- have failed to withstand even the most minimal judicial scrutiny to which the 2008 Supreme Court ruled detainees are constitutionally entitled. The Government has now lost roughly 28 out of 33 habeas corpus hearings brought by detainees since the Supreme Court's ruling, often before some of the most right-wing, executive-branch-deferring judges in the country, who have found there is no credible evidence to support the government's accusations.

So lame and desperate are Joscelyn's smears that his attack ends up indicting himself, his magazine and his political movement far more than his intended target. Here are the profoundly un-American "principles" he implicitly -- and at times explicitly -- embraces:

1. If the Government asserts accusations against Muslims, those accusations shall be deemed true, even if they're made in secret and without being tested by any court.

2. Even if the Government voluntarily releases Muslim detainees from captivity without charges, they should still be assumed to be guilty, dangerous and evil Terrorists.

3. Muslim detainees have no right to counsel, no right to be charged with a crime, no due process rights to contest the accusations against them, and no right to be free of torture.

4. Anyone who works to provide basic due process and legal representation to Muslim detainees, or who publicizes their wrongful detentions and abusive treatment, shall themselves be deemed suspect of harboring allegiances to Al Qaeda.

To see how alien this is to any political values historically understood as "American," compare The Weekly Standard's neoconservative manifesto to what Thomas Paine thought about such matters, as expressed in the final paragraph of his 1790 Dissertations on First Principles of Government:

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

Or compare the neocon mentality to Thomas Jefferson's warning, in a 1789 letter to Paine, that trial by jury -- which the ACLU safeguards and most of America's Right despises -- is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Between (a) an organization that works tirelessly for basic due process and Constitutional liberties for everyone and (b) a political movement which demands their rejection, does it really take any effort to see which side is vigorously defending core American principles and which side is waging war on them? And given how due-process-free imprisonment is one of the most potent recruiting tools for Islamic extremists (as reported by David Rohde, Johann Hari, Gen. McChyrstal, and even the Pentagon's own 2004 Task Force) -- to say nothing of the endless aggressive wars cheered on by The Weekly Standard's play-acting warriors -- does it take any effort to see who Al Qaeda's "useful idiots" and stalwart allies truly are?

As Hari recently documented after interviews with ex-Muslim militants, the most effective weapon against Al Qaeda's recruitment efforts is when human rights groups in the West -- such as the ACLU -- demand equal, humane and Constitutional treatment of Muslims:

When they saw ordinary Westerners trying to uphold human rights, their jihadism began to stutter. Almost all of them said that they doubted their Islamism when they saw a million non-Muslims march in London to oppose the Iraq War: "How could we demonise people who obviously opposed aggression against Muslims?" asks Hadiya. . . . [Another explained]: "So, when Amnesty, despite knowing that we hated them, adopted us, I felt -- maybe these democratic values aren't always hypocritical. Maybe some people take them seriously . . . it was the beginning of my serious doubts."

By stark contrast, the policies cheered on by Joscelyn's right-wing comrades have done more to fuel and enable Al Qaeda than any other single factor:

Every one of them said the Bush administration's response to 9/11 -- from Guantanamo to Iraq -- made jihadism seem more like an accurate description of the world. . . . [One ex-militant] started to recruit other students, as he had done so many times before. But it was harder. "Everyone hated the [unelected] government [of Hosni Mubarak], and the US for backing it," he says. But there was an inhibiting sympathy for the victims of 9/11 -- until the Bush administration began to respond with Guantanamo Bay and bombs. "That made it much easier. After that, I could persuade people a lot faster."

The ACLU (with which I consult) not only defends the most elemental American liberties (e.g., the State cannot imprison people without charging and convicting them of a crime), but also renders Al Qaeda's demonization-dependent recruitment efforts against the West far less effective. By stark contast, the Constitution-hating, warmongering and tyrannical template embraced by The Weekly Standard is precisely what Al Qaeda needs -- and desires -- in order to thrive. The more the U.S. is represented by the warmongering and anti-due process face of Bill Kristol, the better it is for Al Qaeda; the more it adheres to the liberties and rights guaranteed by the Constitution and defended by the ACLU, the weaker Al Qaeda becomes. Kristolian neocons want and need a strong Al Qaeda in order to justify the array of wars and civil liberties erosions they crave, and everything they advocate is designed to achieve that goal -- or, at the very least, guarantees that outcome.

The greatest irony of the last decade is that the very people who most despise core American principles and do more than anyone to fuel Islamic extremism have anointed themselves the arbiters of American patriotism and protectors of American security. The reality is that it is this very movement which simultaneously advances definitively un-American political values and strengthens anti-American Islamic radicals -- both by design and by effect. The Weekly Standard's due-process-hating manifesto this morning is a vivid exhibit for how that has worked.

The administration guts its own argument for 9/11 trials

"What I'm absolutely clear about is that I have complete confidence in the American people and our legal traditions and the prosecutors, the tough prosecutors from New York who specialize in terrorism" -- Barack Obama, yesterday.

"Holder said five other Guantanamo detainees would be tried by military tribunals. The five include Abd al-Rahim al Nashiri, who is accused of masterminding the 2000 attack on the USS Cole warship in Yemen; and Canadian Omar Khadr, accused of killing a U.S. soldier in Afghanistan" -- NPR, yesterday.

"'Administration officials say they expect that as many as 40 of the 215 detainees at Guantanamo will be tried in federal court or military commissions . . . . and about 75 more have been deemed too dangerous to release but cannot be prosecuted because of evidentiary issues and limits on the use of classified material' . . . If true, that means that there are 75 so-called 'Fifth Category' detainees who might be subject to indefinite detention without trial" -- The Atlantic's Marc Ambinder, yesterday, quoting The Washington Post.

* * * * *

Can anyone reconcile Obama's homage to "our legal traditions" and his professed faith in jury trials in the New York federal courts with the reality of what his administration is doing: i.e., denying trials to a large number of detainees, either by putting them before military commissions or simply indefinitely imprisoning them without any process at all?

During his appearance before the Senate Judiciary Committee yesterday, Eric Holder struggled all day to justify his decision to put Khalid Sheikh Mohammed on trial because he has no coherent principle to invoke. He can't possibly defend the sanctity of jury trials in our political system -- the most potent argument justifying what he did -- since he's the same person who is simultaneously denying trials to Guantanamo detainees by sending them to military commissions and even explicitly promising that some of them will be held without charges of any kind.

Once you endorse the notion that the Government has the right to imprison people not captured on any battlefield without giving them trials -- as the Obama administration is doing explicitly and implicitly -- what convincing rationale can anyone offer to justify giving Mohammed and other 9/11 defendants a real trial in New York? If you're taking the position that military commissions and even indefinite detention are perfectly legitimate tools to imprison people -- as Holder has done -- then what is the answer to the Right's objections that Mohammed himself belongs in a military commission? If the administration believes Omar Khadr belongs in a military commission, and if they believe others can be held indefinitely without any charges, why isn't that true of Khalid Sheikh Mohammed? By denying jury trials to a large number of detainees, Obama officials have completely gutted their own case for why they did the right thing in giving Mohammed a trial in New York.

Even worse, Holder was reduced to admitting -- even boasting -- that this concocted multi-tiered justice system (trials for some, commissions for others, indefinite detention for the rest) enables the Government to pick and choose what level of due process someone gets based on the Government's assessment as to where and how they're most likely to get a conviction:

Courts and commissions are both essential tools in our fight against terrorism . . . On the same day I sent these five defendants to federal court, I referred five others to be tried in military commissions. I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law. . . . At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is a federal court.

Does that remotely sound like a "justice system"? If you're accused of being a Terrorist, there's not one set procedure used to determine your guilt; instead, the Government has a roving bazaar of various processes which it, in its sole discretion, picks for you based on ensuring that it will win. Even worse, Holder repeatedly assured Senators that the administration would continue to imprison 9/11 defendants even in the very unlikely case that they were acquitted, citing what they previously suggested was their Orwellian authority of so-called "post-acquittal detention powers." Is there any better definition of a "show trial" than one in which the defendant has no chance of ever being released even if acquitted, because the Government will simply thereafter assert the power to hold him indefinitely without charges?

I understand that sending even a limited number of Terrorism suspects to federal court is politically difficult and controversial, as the last couple of days have demonstrated. But by refusing to embrace and defend the core principle of justice at stake here -- that a distinguishing feature of our political system is that we don't imprison or kill people without charging them with a crime and proving their guilt in a real court, and that military commissions and indefinite detention are un-American (which Democrats argued under Bush) -- the Obama administration has made it for more difficult for it to defend what it is doing, as well as for those who want to defend their decision to give trials to 9/11 defendants.

MR. GREENWALD: If you look at how the British treated the people who did the London subway bombings, the Spanish who treated the people who did the Madrid subway bombings -- even India just put on trial the sole surviving terrorist who perpetrated the Mumbai massacre last year. Even Indonesia gave trials in their real cities to the people who blew up the nightclubs in Bali.

It's only the American conservatives who are feeding the terrorist agenda by saying that we're too scared to hold trials --

MR. RATIGAN: Hold on, Glenn.

MR. PATAKI: Can I respond to that, Dylan? Only the -- only the -- only the American conservatives? Then tell me why Obama and Holder are using military tribunals against those who blow up Americans in acts of war overseas? They're just picking these particular terrorists for trial in New York because they blew up civilians in New York. So what their logic is, "Kill thousands of civilians and you can get a civilian trial; kill one or two overseas, and we're going to use military tribunals."

That makes no sense.

For those wanting to defend the administration, what's the answer to that? The same thing happened when Rep. Nadler, as part of the same segment, tried to defend the Obama administration's decision to try the 9/11 defendants in New York:

REP. NADLER: I think that our tradition is that people accused of heinous crimes get trials, and they get trials in the area in which the crime is committed, which is right here. And I think it's exactly the right thing to do. . . .That's the way it ought to be, and we ought to show the world that we adhere to our traditions of justice and that these terrorists are not going to cause us to abandon the law.

MR. PATAKI: ... We are going to use military tribunals. They're saying they're perfectly fine for some terrorists, but these terrorists they're going to try here. What's the justification for that, Jerry?

REP. NADLER: Well, I -- well, I don't think there is any justification.

MR. PATAKI: I don't either.

The administration should have the courage of its convictions and defend jury trials as a linchpin of American justice, which would entail giving them to all Terrorism suspects not captured on any battlefield. But by refusing to do so -- by exhibiting the very cowardice of which Holder accused Republicans, i.e. denying Terrorism suspects a trial -- the administration has no cogent argument to make in its own defense. It's just another case of the administration wanting to bask in the rhetorical glory of "the rule of law" while simultaneously trampling on it for petty political convenience.

Tuesday, November 10, 2009

Transcript: Interview with Rep. Jerry Nadler

Glenn Greenwald: My guest today on Salon Radio is Democratic Congressman Jerry Nadler of New York, whose bill, the State Secrets Protection Act, was just approved last week by the House Judiciary Committee by a vote of 18-12, and if it passes the House and Senate, it will be the first bill, the first law ever, to regulate the states secrets privilege. Congressman, thanks for joining me.

Let me ask you to begin by explaining what the principal points of this legislation are, and where does it go from here?

Jerry Nadler: Well, let me just start with one bit of background. As you have pointed out in your many articles, there's an old maxim in law, and that is there's no right without a remedy. If you can't enforce a right, it doesn't matter what the Bill of Rights says or what the Constitution says or anything. And if the government invades your rights, if it kidnaps you and sends you to Syria to be tortured, if it invades your house, ransacks your papers, steals your guns, for the conservatives among us, whatever - what's your remedy? Your only real remedy is to sue. To sue the government in tort for damages or to sue for an injunction to say stop - that's your remedy.

If the government can simply walk into court, as soon as you file the complaint, and file an answer saying, "dismiss the case because the consideration of the case would necessitate the revelation of state secrets that would involve major national security" and the case is dismissed, just on the magic incantation of the words "state secrets," then you can't enforce any rights and none of us have any rights. The Bill of Rights becomes like the Soviet Constitution of 1936, which read very nicely, but didn't mean anything. So we've got to change that.

GG: Let me stop you right there, because you had a quote from last week that I found really striking, that I was about to ask you about, and you sort of answered it, but I want to ask you about another part of it. You said, quote, "The state secrets doctrine, as it has been reinvented in the last few years, is the greatest threat to liberty in this country."

Now, that's a fairly strong claim, and I think you just explained part of why that is. What do you mean when you say, "the state secrets doctrine, as it has been reinvented in the last few years"?

JN: Well, it was clearly reinvented because for 50 years, from the Reynolds decision by the Supreme Court in 1953, it was an evidentiary privilege, that is to say, the government could not stop a trial, but it could go into court and say, that document that you want in evidence, that piece of paper, that whatever, you can't have that piece of evidence because that piece of evidence is a state secret. So, it would shield a piece of evidence. But it would not stop the trial right upfront.

The Bush administration made two changes, both of which have been embraced by the Obama administration. One, it started using this doctrine, which was used very sparingly before, all the time. And secondly, it invented, not only to say, you can't see a document, but it invented the use of saying, you can't have a lawsuit, of coming into court right on the pleadings, right after the initial filing of the initial complaint, to say, stop the lawsuit, because, not that you can't see a document, but the very consideration of the lawsuit, the very consideration of the case, will endanger state secrets, and dismiss the case right off the bat.

And that hides everything. If you dismiss the case right off the bat, then you can't use the case to find out what's going on, to prove that the government is violating rights, is engaging in torture, or is wiretapping without a warrant or whatever. That's what I meant by reinventing. It was never used until the Bush administration to dismiss a case right upfront.

GG: And you feel that it's fair to say, as I think you just did say, that in cases involving rendition, brought by victims of torture, people alleging they were subjected to illegal warrantless eavesdropping, that the Obama administration has been using this privilege in exactly the same way, meaning in this way that's reinvented, by saying not just these specific documents are subject to the state secrets privilege, but the subject matter itself is?

JN: Yes. They said that in court on a number of occasions, and they've in a number of cases, the al-Haramain case, in another case the Jeppesen case, they've taken exactly the same position, saying that you can't consider the case, as the Bush administration did, and they've argued in courts, in appellate courts, they've sought review, to defend that position.

Now, they have, we've been talking, I've been talking with the administration since January about this, and what they've been telling us is, we're reviewing the policy, we're reviewing the policy, we're reviewing the policy. But meanwhile they go into court and take obnoxious positions.

GG: Except --

JN: Finally, they came out with this new position, the Attorney General a few weeks ago. So what that position amounts to is, we will use the doctrine more sparingly - and that may be true - no one person in the administration will have the ability to make the decision, it will have to be a group of people, committee, will review each case very carefully, we'll be more sparing in its use and we'll report to Congress. All of that's fine.

But all of that is minuscule because it still reserves to the Executive Branch the absolute power to try to stop any case, the absolute right. The court, the Ninth Circuit, three panel judges of the Ninth Circuit in one of the cases said the executive cannot be its own judge. That is key to the American system of justice; it's why we have three branches, that nobody can be your own judge. If the executive commits an act which someone else alleges is improper or is a crime or whatever, you go to court. A court has to judge that. And they're still saying, with respect to this, trust us. We won't use this doctrine when we shouldn't - trust us. But the court can't review it.

GG: Right. And even subsequent of course to the announcement by Attorney General Holder, there was a case just two weeks ago alleging warrantless eavesdropping, illegal warrantless eavesdropping, on the part of the Bush Administration and the Obama DOJ responded by asserting the state secrets privilege as a way to get rid of the entire lawsuit.

JN: And it may very well be true that before they did that, they had more people review it within the department and more people look at it carefully. But so what?

GG: Right. Now, let me ask you about the specific legislation. What is it that your legislation would do principally that would curb these dangers and abuses?

JN: Essentially the legislation would do two things. It's a little more complicated, but essentially it would do two things. One, it would say you cannot use the state secrets doctrine to block a case right off the bat. You cannot challenge right upfront on the pleading and say, you cannot consider the case because it would reveal state secrets. You can, move to suppress an individual document or evidence or whatever, and it's conceivable that if all the evidence is suppressed the case collapses. But that's because the evidence is suppressed.

Secondly, if you move to, if the government says, this document or this evidence, whatever it is, is so sensitive that you can't use it, the court has to judge that, not the administration. The court must hold a suppression hearing, an in-camera secret hearing, in which the administration has to allege and prove to the satisfaction of the court, why that evidence is so secret and so dangerous, that in fact it cannot be used in open court. And it may. I mean, there are some things that are. And if it proves that to the satisfaction of the court, and the court agrees with it, then it's got to see if it can make a summary of the evidence, or a redacted version of the evidence, that can be used in court. And that's essentially the bill.

GG: Right.

JN: There are some more details, but those are the essences.

GG: Right. Now, let me just finish up with a couple questions about the procedure and the politics of how this bill can become law. There was some speculation - it was just speculation, but it was there - when the DOJ announced its internal guidelines, that part of the intent was to render legislation unnecessary, on the grounds that the Justice Department is now solving the problem. Have you heard from the White House, either formally or informally, about what their position is on the need for this legislation?

JN: They have so far said that they are agnostic on the legislation. They have not taken a position. As I've said, we've been talking to them, we've been trying to get them to support the legislation, and I must say that they've been - it's not the White House, the Justice Department, we've been talking to, and the Counsel's office, I might add too, but mostly the Justice Department - and I think it's fair to say they've been slow-walking it. This has been taking months and months and we've been talking to them about since February, since they came into office, and they've not taken a position.

Now, hopefully, with the first time approval by the entire Judiciary Committee of this bill - I know staff is meeting with Justice Department staff this week, today and tomorrow in fact, my staff - we can get them to be a little more forthcoming. Also, there are some people who have suggested that maybe we ought to put into the same bill with the PATRIOT ACT reauthorization.

GG: Is that something you're considering doing?

JN: It's something I want to do; I don't know whether I can.

GG: Do you have any indication at all from House leadership about their willingness to bring this bill to the floor now that Judiciary has approved it?

JN: Not yet. I think the fairest thing to say about House leadership is that they've been completely and totally preoccupied with health care.

GG: Right - that's fair.

JN: If you consider: we've been talking to the leadership on staff level, and they're interested in this legislation. I don't think we can say anything more than that. Obviously they're going to have to make some decisions because we reported the PATRIOT ACT reauthorization with the changes that you're familiar with, also this week. And that's got to be taken care of; the legislation, it will lapse if we don't approve it by the end of the year, so they're going to have to pay some attention to it one way or the other.

GG: Absolutely. Well, I don't think it can be overstated the importance of this bill that you're sponsoring and pushing for the reasons that you explained quite well, so hopefully there will be some mechanism for the people who care about it, and there are a lot of them, to start exerting some pressure and help make it into law.

JN: I hope so. They should exert pressure on the leadership of both houses. One of the basic problems is that I have to think that the administration is not going to support the bill, and it's going to be very difficult to pass it. When you have a Democrat president, and they put out the word that they don't want this bill, it's going to be very difficult to pass it in the House.

GG: Right. There's supposed to be that whole separation of powers thing, and members of Congress acting independently, but I guess that's just theoretical now.

JN: And that's true to some extent, but of course, the administration and politics plays a large role, as we all know.

GG: Absolutely. Well, I really appreciate your efforts - I think it's, as I said, an incredibly important bill that you're working on, and I appreciate your taking the time to talk to me, and we'll definitely be following it.

JN: Thank you. I spent a considerable amount of time working with John Conyers and Bobby Scott, also on the Patriot Act. I think this is frankly more important that the Patriot Act.

GG: Yeah. Absolutely. I agree completely, and I've been writing about it a lot as you know, and will continue to follow.